Punjab-Haryana High Court
Swarna Devi And Ors. vs Mahant Nath Ram Sharma on 3 November, 2004
Equivalent citations: (2005)140PLR623
Author: Nirmal Singh
Bench: Nirmal Singh
JUDGMENT Nirmal Singh, J.
1. This is defendants' appeal as the suit filed by the plaintiff has been decreed by the learned Additional District Judge, Sangrur and the judgment/decree passed by the Additional Civil Judge (Senior Division), Sangrur, dismissing the suit of the plaintiff has been set aside vide order dated 11.3.2000.
2. The brief facts of this case are that Pandit Ralla Ram was the father of the plaintiff and defendant No. 1. He died on 16.9.1966 leaving behind agricultural land situated at Village Mehlan, Tehsil Sunam, and one residential house situated in Mandi Dabwali, District Sirsa and also ornaments and plot No. 12 measuring 1 biswa 9-1/2 biswansis at Sangrur. The case set up by the plaintiff was that his father Pt. Ralla Ram executed a valid Will dated 2.2.1966 in respect of his moveable and immovable properties. As per this Will, his father bequeathed agricultural land situated in village Mehlan in favour of the plaintiff and defendant No. 1 in equal shares and the ornaments in favour of Bhagwanti, mother of the parties. After the death of Bhagwanti, the plaintiff and defendant No. 1 will inherit the same in equal shares. The house situated in Mandi Dabwali was bequeathed in favour of the plaintiff and defendant No. 1 in equal shares with the conditions that in case the gold ornaments were given by Bhagwanti in favour any of the her sons, the other son will inherit the house situated in Mandi Dabwali. The defendant took possession of all ornaments, therefore, as per the Will, the plaintiff became the owner of house situated at Mandi Dabwali and is in exclusive possession of the same. It is further case of the plaintiff that he purchased Plot No. 12 at Sangrur from one Sarju Parsad for Rs. 1,000/- vide sale-deed dated 3.12.1961 registered on 17.2.1961 and instead of getting the same executed in his favour, he got the same executed in favour of his father Pandit Ralla Ram. The sale consideration of Rs. 1,000/- was paid by the plaintiff to Sarju Parsad. On the said plot, plaintiff constructed the house in the year 1962 and also installed a flour mill till. The machinery of the flour mill was sold by the plaintiff in the year 1968. The plaintiff converted some portion (ABEF marked in the site plan) of the house into a mandir and he was the exclusive owner of the said house and mandir. Defendant No. 1 illegally and forcibly took possession of the portion of house marked ABCD in the site plan without any right and title and also threatened to alienate the disputed house. Plaintiff requested the defendants to deliver the possession of the disputed house and not to alienate or to rent out or lease the said house, to which the defendant refused. Hence, the plaintiff filed a suit for possession of the disputed house as well as for permanent injunction restraining the respondent not to alienate the property in dispute.
3. The defendant-respondents contested the suit and controverted the allegations. It was denied that plot No. 12 situated at Sangrur was purchased by the plaintiff, rather, it was purchased by Pt Ralla Ram and he had paid the sale consideration. It was further pleaded that plaintiff was not having good relations with his father so there was no question of love and affection and plaintiff had not got executed the sale-deed in favour of Pt Ralla Ram. It was further pleaded that plaintiff has taken the possession of 1/2 share of the constructed house and by filing the present suit, he was humiliating and harassing the defendants. It was also pleaded that plaintiff and defendants have constructed the whole house as shown in mark ABEF and before the construction of the house, the parties had prepared the site plan and Pt. Ralla Ram submitted the same before the Municipal Committee. The sanction was given by the Executive Officer, Sangrur on 27.2.1972. It was also pleaded that the whole house was constructed by Pt. Ralla Ram and the flour mill was also installed by him. After the construction, the house was partitioned in two parts in the year 1963, portion ABCD falls into the share of the defendants and portion CDEF falls into the share of plaintiff. Since 1963, defendants and plaintiff were in exclusive possession of the said house. The mandir (mark ABEF) was not recognised nor it was controlled by any managing committee. Plaintiff had been collecting money from the people in the name of religion and the mandir had been constructed with public fund. The family of plaintiff used to reside in the said mandir. It was further pleaded that in the municipal records, the house was divided into two parts. The portion marked as CDEF bears a house No. X/343 whereas the portion marked as ABCD bears house No. B-X/344 since 1963 and in the assessment register prepared by the Municipal Committee, Sangrur, defendant No. 1 has been shown as owner of the house No. B-X/344. Defendant No. 1 had been paying the house tax since, 1963, it was further pleaded that mother of the parties, during her life time handed over the gold ornaments and cash in favour of her two sons and also executed a Will dated 31.3.1978 vide which she bequeathed her property at Mandi Dabwali in favour of her two sons and three daughters. Defendant No. 1 also put the counter-claim by pleading that the decree for mandatory injunction be issued and plaintiff be ordered to demolish the construction raised on the first storey on the common wall of the house in dispute. In the counter-claim, it was further submitted that defendant No. 1 is the exclusive owner in possession of the disputed house since 1963 and has also became owner of the house in dispute by way of adverse possession. On the pleadings of the parties, the trial Court framed the following issues:-
1. Whether deceased Ralla Ram executed a valid Will dated 2.2.1966 in favour of the parties? OPP
2. If issue No. 1 is proved, whether the plaintiff is entitled to the decree of possession? OPP
3. Whether the plaintiff is entitled to the injunction prayed for? OPP
4. Whether the suit is not maintainable in the present form? OPP
5. Whether this Court has got no jurisdiction to try the present suit? OPP
6. Whether the plaintiff has not affixed the proper Court-fee? OPP
7. Whether the defendants have become owner by way of adverse possession? OPD
8. Whether the suit is not within time? OPD
9. Whether the plaintiff has no locus standi to file the present suit? OPD
10. Whether the defendants are entitled to the decree of mandatory injunction as claimed in the counter claim? OPD
4. The learned trial Court decided issue Nos. 4 to 6 and 9 in favour of the plaintiff and remaining issues were decided against him, aggrieved by which, the plaintiff filed an appeal before the learned Additional District Judge, Sangrur. The learned Additional District Judge reversed the findings of the trial Court on issue Nos. 1 to 3, 8 and 10 and decreed the suit of the plaintiff. Aggrieved by which, the defendants respondents preferred this appeal.
Mr. Arvind Singh, learned counsel for the appellants submitted that the learned lower Appellate Court has not appreciated the evidence in its right perspective. He further submitted that it has been proved on record that Pandit Ralla Ram had executed the Will in favour of the plaintiff and defendant No. 1. He contended that original Will has not seen the light of the day. He further contended that learned trial Court has erroneously relied upon the secondary evidence led by the plaintiff to prove the Will. He contended that if Ralla Ram had executed the alleged Will, then the same must have been produced in the Court and without the production of the Will, it cannot be said that Ralla Ram had executed the Will. He contended that learned lower Appellate Court erroneously held that suit was filed after 26 years of the rising of the cause of action. The father of the appellants died on 16.9.1966 and the suit was filed on 7.5.1992 whereas the same should have been filed within 12 years after the death of the father of the appellants.
5. I have considered the submissions of learned counsel for the appellants and perused the record.
6. The only controversy in this appeal is as to whether Pandit Ralla Ram executed a valid Will dated 2.2.1966 in favour of the plaintiff and defendant No. 1 and whether the suit filed by the plaintiff was barred by limitation.
7. The original Will has not been produced by the plaintiff but the case of the plaintiff was that after the death of his father Ralla Ram, the Will remained in possession of defendant No. 1. Plaintiff and defendant No. 1 were having good relations but after the death of their mother Smt. Bhagwanti, defendant No. 1 refused to hand over the original Will to him and only supplied a photo copy of the said Will. Therefore, the plaintiff had to prove the Will by leading secondary evidence. The Will has been proved from the statement of Harvinder Singh, PW-7. He was the attesting witness to the Will. He deposed that on 2.2.1966 he had gone to the flour mill of Pandit Ralla Ram for grinding the wheat. Pandit Ralla Ram asked him to attest the Will, which he had executed in favour of his sons. Raja Ram scribed the Will at the instance of Pt. Ralla Ram and read over and explained the same to him. Pandit Ralla Ram signed the Will in his presence after admitting the contents of it to be correct. He further deposed that all the sons, daughters and wife of the Ralla Ram were present and all of them signed and thumb marked the Will in his presence. He further deposed that he and Passi attested the Will in the presence of testator. The will was scribed by Raja Ram, who had died. His writing had been proved by Baldev Krishan (PW-10) Baldev Singh (Baldev Krishan) has deposed that he has been seeing his father writing and signing and he was conversant with his handwriting. He further deposed that Will, Ex.PW-7/A, was scribed by his father. He identified his signatures. The will speaks after the death of testator. The will is to be relied upon when no suspicious is attached to it. In the instant case, no suspicion is attached to the Will. The will had been signed by the persons who were disinherited in the Will. PW-5 Joginder Singh deposed that on the basis of the Will, the mutation was sanctioned. The appellants had acted upon the will also. If Pandit Ralla Ram had not executed the will, then all the legal heirs were to inherit the property of testator Ralla Ram. As per the will, the plaintiff and defendants (now appellants) had got half share in the property in Village Mehlan. After getting the mutation sanctioned in favour of the plaintiff and defendants of the estate left by Pandit Ralla Ram in Village Mehlan, the appellants had also mortgaged their share. This fact has been proved by PW-6 Sukhdev Singh that the appellants had mortgaged their land vide registered mutation deed dated 27.6.1980. This shows that the appellants had acted upon the Will. Once they had acted upon the Will, they could not challenge the same.
8. The next point which is to be determined in this case is whether the suit of the plaintiff is within limitation. The appellants had filed the suit on the basis of title which they had inherited on the basis of Will. When the suit is to be filed on the basis of title, then no limitation is prescribed. Furthermore, the appellants had taken a specific plea that they are in possession of the land in dispute for the last more than 12 years and their possession has matured into ownership. However, this plea of the appellants has been negated by the lower appellate Court. The findings recorded by the lower Appellate Court are, thus, based upon evidence. Therefore, the suit of the plaintiff for possession is not barred by time.
In view of the above findings, no case is made out, warranting interference by this Court in the well reasoned findings recorded by learned lower Appellate Court.
Therefore, there is no merit in this appeal and the same is dismissed. However, the parties are left to bear their own costs.